The New Form I-9. A detailed guide to what may be the most intimidating 2-page employment document. Updated: August 23, 2017

Transcription

1 The New Form I-9 A detailed guide to what may be the most intimidating 2-page employment document. 1 Updated: August 23, 2017

2 Introduction The United States Citizenship and Immigration Services (USCIS) released a new Form I-9 on July 17. Employers are able to use this revised version immediately, but may continue using the Form I-9 with a revision date of 11/14/16 through September 17, Beginning September 18, employers must use the revised form with a revision date of 07/17/17 for all new employees. Section 1 Filing and retention Section 2 Completing the new I-9 the employee s responsiblity Section 3 Completing the new I-9 the employer s responsiblity Section 4 Commonly asked questions 2

3 FILING AND RETENTION HOW TO FILE 3 Keys to properly filing and storing your I-9s 1 KEEP THEM IN A SEPARATE MASTER FILE OR 3-RING BINDER I-9 files are subject to unique record retention laws. A separate file will help ensure that you retain these forms for as long as necessary and that you can readily discard them after the retention period expires. 2 REMOVE THE I-9 UPON TERMINATION Removing an employee s I-9 from the master folder or binder on an employee s termination date, and storing it in a separate terminated employee t I-9 file until the appropriate destroy date, will help you stay organized. 3 RETAIN SEPARATELY FROM OTHER EMPLOYEE INFORMATION In the event of an audit, it s imperative that these documents are removed from all other identifying & confidential employee information before review, i.e., separate from an employee s personnel file. Regardless of where an employer stores the I-9s, the law requires that the forms are made available upon request by authorized government officers with as little as 3 days notice. 3

4 FILING AND RETENTION HOW LONG TO KEEP I-9s Let s pause for some math! Knowing how long to store I-9s comes down to a few different factors. Essentially, they must be retained for as long as the employee is working for you, so for their full length of employment. Then, after an employee has separated employment, the form must be stored for 3 years after the date of hire, or 1 year after termination, whichever date is later. I-9 RETENTION QUICK GUIDE Employee s Start Date + three years = date A Employee s Termination Date + one year = date B Store their form I-9 until the later of the two dates 4

5 I-9 FORM: NEW VS. OLD All U.S. employers must ensure proper completion of an I-9 for each individual that they hire for employment. This includes a form for citizen and noncitizen employees alike, and both employees and employers must complete sections of the form. As of January 22, 2017 to September 18, 2017, employers must use the new version of the form. You can tell the versions apart by looking at the date in the bottom left-hand corner of the form. OLD FORM. CAN BE USED UNTIL JANUARY 22, NEW FORM. USE AFTER September 18, Form I-9 11/14/2016 N Form I-9 07/17/17 N IMPORTANT: the new form will be used for newly hired employees moving forward. There is no need to ask your current employees to complete another form. In fact, doing so is prohibited by the US Citizenship and Immigration Services (USCIS). GET THE FORM: uscis.gov 5

6 THE NEW I-9 SMART FORM Acording to the USCIS, the changes to the new I-9 are intended to create a smart version of the form. The goal is to reduce technical errors and make the form easier to complete on a computer. The fillable PDF includes drop-down menus for various fields, on-screen instructions, calendar fields, and error messages for incomplete information. However, this smart form should not be confused with an electronic I-9 as defined by USCIS meaning one that is completed and stored via a fully electronic system. The latter form must comply with specific USCIS criteria to be certain of the integrity of the electronic system. Even with the new smart form, an employer must still print the completed I-9, obtain the proper signatures, monitor completed forms for reverification, and retain the I-9s for the appropriate period. 6

7 COMPLETING THE FORM SECTION 1: EMPLOYEE S RESPONSIBILITY Both the employer and employee have responsibilities on the I-9. The following section focuses on the fields the employee is required to complete. 7

8 COMPLETING THE FORM: EMPLOYEE SECTION 1: EMPLOYEE S RESPONSIBILITY PERSONAL INFORMATION Name and Address The employee must begin by entering the following:» Full, legal name, including other last names used such as a maiden name» Home address» Date of birth The other last names used field used to require all previous names, but now focuses only on legal last name changes. and Phone and phone number are both optional in this section of the form. However, employees must enter N/A into any field left blank. Previously this was recommended, but not required. SSN Providing a social security number is voluntary for all employees, unless you re an employer participating in the USCIS E-Verify program. An employer may not ask an employee to provide them with a specific document for the I-9 with the employee s social security number on it. Doing so may constitute unlawful discrimination. 8

9 COMPLETING THE FORM: EMPLOYEE SECTION 1: EMPLOYEE S RESPONSIBILITY CITIZENSHIP STATUS Citizenship Status In the middle of Section 1, employees must identify themselves as: a citizen; a noncitizen; a lawful permanent resident; or an alien authorized to work on a temporary work visa. If this last option is the case, the employee must enter the date their employment authorization expires followed by either the USCIS number, Form I-94 admission number, or Foreign passport number that accompanies their visa and entrance paperwork. Each of these statuses has a corresponding digit 1 through 4 which will be used in Section 2 of the form. Signature and Date The fields for an employee s signature and date cannot be pre-populated, and thus must be added after printing the form. The accurate date on this signature line is the date the employee completes Section 1. This section may be completed any time after the job offer was made, or on the start date. An employee can complete this form before the start date, so long as an employment offer has been made. 9

10 COMPLETING THE FORM: EMPLOYEE SECTION 1: EMPLOYEE S RESPONSIBILITY PREPARER/TRANSLATOR NEW: The employee must check one of these boxes. Preparer and/or Translator Certification The bottom of Section 1 includes a Preparer or Translator block. If the employee cannot complete Section 1 without assistance, for instance if the employee is a minor and their parent helps, or if an employee needs the form translated, someone may assist. This person must read the form to the employee, assist with completion of Section 1 and have the employee sign or mark the form in the appropriate places. Then, the preparer or translator must complete the final block of this section of the I-9. Click to Finish If completed on the computer, the employee will then select the click to finish icon at the bottom of the page, at which time the smart form will check to ensure that each field in Section 1 is complete. Incomplete areas will be highlighted for the employee to review and update accordingly. If completed via a paper version, the employer is responsible for reviewing and ensuring that all employees fully and properly complete Section 1 of the form. 10

11 COMPLETING THE FORM: EMPLOYER SECTION 2: EMPLOYER S RESPONSIBILITY Both the employer and employee have responsibilities on the I-9. For the employer s section, it must be completed by the employer or an employer representative, such as a designated personnel officer, or anyone else acting on the employer s behalf. However, having an employer representative complete the form includes some risk, as the employer is still liable for any violations in connection with the form or the verification process. Utilizing a non-employee representative requires ample training and trust on the employer s part. It s very important to note that the same person who reviews and validates the documents provided by an employee for completion of Section 2, must fully complete that section (the employer s section that includes dates and the employer s signature). This is something that is frequently done incorrectly. For example, it is not permissible for a manager to review a newly hired employee s documents, while HR completes Section 2. The same person must complete both responsibilities. Using a notary public If needed, a notary public may act as an authorized representative of the company; however, some notaries cannot and will not sign Section 2 due to notary regulations. Whether or not a notary is used, no section of the I-9 requires official notarization. 11

12 COMPLETING THE FORM: EMPLOYER SECTION 2: EMPLOYER S RESPONSIBILITY IMPORTANT: This section must be completed within 3 business days of the employee s first day of employment Employee Information / Citizen Immigraton Status At the top of this section, you must begin by entering the employee s last name, first name and middle initial from Section 1. (This will prepopulate if using the online version). Then, there s the new Citizenship/Immigration Status field. The response in this field is a digit from 1 to 4, which correlates to the number of the citizenship or immigration status checkbox the employee selected back in Section 1. When completing the form on the computer, this field will pre-populate itself. And additionally, once this field is pre-populated, the Document Title drop-downs that follow will be directly related to the employee s selected citizenship or immigration status. Employee Information 12

13 COMPLETING THE FORM: EMPLOYER SECTION 2: EMPLOYER S RESPONSIBILITY EXAMINING THE EMPLOYEE DOCUMENTS Checking the Documents Employers must physically examine the employee s documents, in the presence of the employee, and identify each in the appropriate columns. Keep in mind that an employer may not include more or fewer documents than required for completion of this form. (Please see the list of acceptable documents on the next page.) Even if you collect photocopies of documents, which is optional, each document must also be entered into Section 2. Copying documents and stapling them with the I-9 does not negate the requirement to fully complete this form. Photocopies Unless participating in the E-Verify program, employers are not required to photocopy or scan documents for retention, and doing so is voluntary. NOTE: If you wish to make photocopies of documents other than those used for E-Verify, you must do so for all employees, regardless of national origin or citizenship, and you must be consistent with this decision. In addition, these photocopies must be stapled to the I-9 and may not be used for any other purpose. 13

14 LIST OF ACCEPTABLE ID DOCUMENTS EMPLOYEE MUST SHOW ONE FROM LIST A OR ONE EACH FROM LIST B + LIST C List A Documents that Establish Both Identity and Employment Authorization 1. U.S. Passport 2. Permanent Resident Card or Alien Registration Receipt Card (Form I-551) 3. Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa 4. Employment Authorization Document that contains a photograph (Form I-766) 5. For a nonimmigrant alien authorizedto work for a specific employer because of his or her status: a. Foreign passport; and b. Form I-94 or Form I-94A that has the following: 01. The same name as the passport; and 02. An endorsement of the alien s nonimmigrant status as long as that period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form. 6. Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI List B Documents that Establish Identity 1. Driver s license or ID card issued by a State or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address 2. ID card issued by federal, state or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address 3. School ID card with a photograph 4. Voter s Registration Card 5. U.S. Military card or draft record 6. Military Dependent s ID Card 7. U.S. Coast Guard Merchant Mariner Card 8. Native American Tribal Document 9. Driver s license issued by a Canadian government authority For persons under 18 who are unable to present a document listed above 1. School record or report card 2. Clinic, doctor, or hospital record 3. Day-care or nursery school record List C Documents that Establish Employment Authorization 1. A Social Security Account Number card, unless the card includes one of the following restrictions: 01. NOT VALID FOR EMPLOYMENT 02. VALID FOR WORK ONLY WITH INS AUTHORIZATION 03. VALID FOR WORK ONLY WITH DHS AUTHORIZATION 2. Certification of report of birth issued by the Department of State (Forms DS-1350, FS-545, FS-240) 3. Original or certified copy of birth certificate issued by a State, county, municipal authority, or territory of the United States bearing an official sealoriginal or certified copy of birth certificate issued by a State, county, municipal authority, or territory of the United States bearing an official seal 4. Native American tribal document 5. U.S. Citizen ID Card (Form I-197) 6. Identification Card for Use of Resident Citizen in the United States (Form I-179) 7. Employment authorization document issued by the Department of Homeland Security

15 COMPLETING THE FORM: EMPLOYER SECTION 2: EMPLOYER S RESPONSIBILITY ACCEPTABLE EMPLOYEE DOCUMENTS Document Combinations When it comes to proof of ID, employees must produce:» One document from List A on the previous page; or» One document from List B along with one document from List C. Employers may not specify which document and employee provides for the I-9. Instead, provide each employee with the List of Acceptable Documents in order to accurately complete the form. All documents presented must be unexpired. Photocopies of documents are not acceptable. However, a certified copy of a birth certificate is allowed. The 3-Day Requirement As mentioned above, all documents presented must be unexpired. And the employee must present them within 3 business days of the hire date. To remain in compliance with the time requirements, consider informing employees that these documents are required on the first day of work as part of the offer letter or pre-employment packet. If an employee forgets the document(s) on day 1, an employer may allowt the employee to work for up to 3 business days, while making sure that the due date for the missing documents is clear. If an employee hasn t provided the necessary documents after 3 days, we recommend suspending the employee from work until the proper documents are produced, and placing a timeframe on the suspension. For example, allow the employee 10 days to produce the required documents. After that, the position could be reopened based on the employee s inability to meet the employment verification requirements. The Receipt Rule There is an exception to the 3-Day Requirement, called the Receipt Rule. If an employee is unable to present the required documents within 3 business days of the date work began, they must present an acceptable receipt within that time in lieu of the required document. If the employee is unable to present the required documents within 3 business days of the date work began, they must present an acceptable receipt within that time in lieu of the required document. This rule is designed to cover situations in which an employee is authorized to work at the time of initial hire, but they re not in possession of a document on the acceptable documents list. 15

16 COMPLETING THE FORM: EMPLOYER SECTION 2: EMPLOYER S RESPONSIBILITY CERTIFICATION Checking the Dates The dates in this section are very important, so pay close attention to them. The employee s first day of employment This is the date of hire, or the exact date that an employee began employment for wages. This date must match the payroll and timekeeping records. Fill in the rest of this section with your company name, position title, and company address. Again, the form must be printed, at which time you ll add your signature and signature date, as these can t be entered via the computer fillable fields. Today s date This is simply the date that you examined the documentss your employee presented and completed the employer s section, and this date must be within 3 business days of the date employment begins. 16

17 COMPLETING THE FORM: EMPLOYER SECTION 3: EMPLOYER S RESPONSIBILITY REVERIFICATION AND REHIRES This section continues to serve a few purposes, most of which have to do with with reverfiying those granted temporary work authorization and rehiring a previous employee. Keep in mind the I-9 retention period calculation mentioned earlier. If you rehire an employee within 3 years of the date of the initial I-9, you can either complete a new I-9, or you may be able to rely on the previously completed I-9 in certain circumstances. You ll want to further inspect this section and the original I-9 to determine how to proceed. 17

18 WHEN IS AN I-9 NOT REQUIRED? WHEN AN I-9 IS NOT REQUIRED Non-employees including volunteers, unpaid interns, and independent contractors should not complete an I-9, as none of these workers (if properly classified) are employees. Additionally, those hired before November 6, 1986, those hired for casual domestic work in a private home, and those who do not perform work on U.S. soil, do not need to complete an I-9. Lastly, those providing labor to you, who are actually employed by a contractor providing contract services (e.g., employee leasing or temporary agencies), do not need to complete an I-9 with you; the I-9 should be done with their primary employer. 18

19 I-9 FREQUENTLY ASKED QUESTIONS What should I do about I-9s for remote employees? USCIS requires that all documents required on the I-9 must be viewed in their original format, meaning that fax or scan is not acceptable. The original documents must be in-hand of a company representative and the one signing the I-9, and reviewed in the presence of the employee. So, here are a few options when it comes to remote employees: 1. Have the employee s manager fly to the location of the new employee and train them to complete the I-9 with new hire within three days of the individual beginning work. It is important that if someone else fills out the I-9 on your behalf, they must carry out full I-9 responsibilities, meaning completing all sections of the I Have the new hire fly to your location for onboarding/training within three days of beginning work. If neither of these work, you can see if a nonemployee notary public can act as a company representative to complete the form. Just keep in mind with the information on page 11, and that some notaries cannot or will not sign Section 2 due to notary regulations, and failure to complete the entire form is not permissible. Remember though, no area of the I-9 requires notarization, so a notary is simply acting as an employer representative for completion of the I-9. Can you leave the issuing authorirty in Section 2 blank for the Social Security Card? No. The proper issuing authority is either the Social Security Administration or the U.S. Department of Health and Human Services, depending on the age of the card. What is the proper issuing authority for a Birth Certificate? A birth certificate will be issued by the U.S. Department of State or a local state, county, municipal authority, or outlying possession of the United States. Birth certificates vary depending on when and where they were issued, so review the document closely for the proper authority. 19

20 FREQUENTLY ASKED QUESTIONS I-9 FREQUENTLY ASKED QUESTIONS What are the penalties for not complying? There are civil and criminal penalties for knowingly hiring or continuing to employ an unauthorized alien, for failing to comply with employment eligibility requirements and for misusing identity documents. There are also unlawful discrimination penalties for engaging in unfair immigration-related employment practices. Failure to properly complete, retain and/or make an I-9 available for inspection may result in a civil penalty ranging from $110 and $1,100 for each violation. The Department of Homeland Security (DHS) will take the company size, any good faith effort made by the employer, the seriousness of the violation, and the history of previous violations into account when assessing the penalty. However, the penalty can become financially burdensome in a hurry when multiplied by the number of current and previous employees. Even simple clerical errors can be costly. It s important to note that good faith effort aside, technical errors will also be penalized. So, an I-9 that is 99% complete, but missing one line, is still subject to these penalties. This is another reason why it s so important that anyone representing the company to complete the form is properly trained to do so, and another reason to utilize the new smart computer version to reduce errors. Failure to properly complete, retain, and /or make an I-9 available for inspection may result in a civil penalty ranging from $110 to $1,100 for each violation. 20

21 FREQUENTLY ASKED QUESTIONS I-9 FREQUENTLY ASKED QUESTIONS Do we need to complete a new I-9 for current employees because a new version was released? No. You should not complete a new I-9 for current employees who already have an I-9 on file. The new version only needs to be used moving forward for newly hired employees. Do I need a new I-9 when an employee changes their name? No. You do not need to complete a new I-9 when an employee changes their legal name. Additionally, an employer is not required to update an employee s I-9 after a legal name change, and an employee is not required to provide documentation to show that they have changed their name for the purpose of the I-9. If an employee makes an error in Section 1 that I catch later, is it acceptable for me to correct it and initial/date? No. If you determine that an employee made an error or omission in Section 1 of the form, you must ask the employee to correct the error/ commission. When correcting Section 1, the employee should enter the missing information, initial and date the newly entered information, and attach a written explanation as to what happened. If the employee is terminated when the error is found, the employer should attach a written explanation about the error/omission to the employee s I-9. However, the US Citizenship and Immigration Services (USCIS) recommends maintaining correct information on I-9s. In order to update the employee s original I-9, enter their new legal name in Box A of Section 3, and then sign, date and print your name on the final line. 21

22 Legal Disclaimer: This document is intended for informational purposes only, and does not constitute legal information or advice. This information is provided in consultation with federal and state statutes and does not encompass other regulations that may exist, such as local ordinances. If you are seeking legal advice, you are encouraged to consult an attorney.